What happens when a cool vendor meets a hot prospect?

Some of the accolades handed out at legal IT ceremonies defy parody as organisers dream up ever-narrower niches in the hope of attracting sponsorship or just attention. I do not know if anyone has in fact received an award for being the “most innovative law firm information services manager in the West Midlands”, but his or her time will surely come.

We need some shorter, snappier terms to express approval and ones which, furthermore, broaden the lexicon.  Some words have been dulled by overuse, and I have drawn attention before to the numbing effect of the polysyllabic triplets so beloved of marketing people. These give us phrases like “systematised, revolutionary and groundbreaking” or “exciting, defensible and intuitive”, where the words look as if they have been pulled at random from a cheat’s guide to Scrabble, and been arranged more for their rhythmic quality than for any real meaning.

It would be really cool if people used words like, well, “cool” which, paradoxically, would indicate warm feelings towards a company or product. And now Gartner, of all people, has done just that (I say “of all people” because I have always pictured Gartner as rather in need of lightening up; either I was wrong about that, or someone else thought so too and did something about it).

Gartner has just named four cool vendors, one of whom is outsourcing specialist Integreon (I do not know who the others are, which suggests that they are from other industries, or are coy about their prize, or were less quick off the mark with the press release about it than Integreon was).

Keeping up with Equivio

Equivio illustrates the maxim “less is more” in ways which go beyond the purpose of its software, which is “the management of data redundancy in content-centric business processes” . There is something appropriate in the way that a company whose business  is identifying the fewest possible documents manages to describe itself in the fewest possible words.

Equivio’s technology, in its own words, zooms in on unique data…With products for grouping near-duplicates, capturing email threads and determining document relevance, Equivio powers a broad range of business applications, including e-discovery, data retention, records management, email archiving and intelligence.

Equivio is generally found built into something else, and this unshowy role is matched by marketing which is low-key and much the better for it. Its web site and other promotional materials state in simple terms what the products do without screaming at you. Because other providers build Equivio’s products into their own applications and processes, they have an interest in spreading the word, and even Equivio’s rivals are publicly respectful of it. I use its illustrations in some of my slides, and it has turned up in my articles in side-references (my recent Australian round-up, for example) but other things have been going on there whilst I have been engaged in my recent tour of the world’s airport lounges.

Iron Mountain completes the assimilation of the Stratify brand

What do you do as an acquiring company when you buy a strong brand?  At one extreme, you swallow it whole and relabel everything on Day One, risking the loss of goodwill and brand-awareness which is part of what you paid for, but boosting your own presence in the market. At the other, you carry on as if nothing has changed except the ownership, preserving the name with which your market is familiar. Car manufacturers, banks and law firms provide examples from other areas of business where judgements have been made one way or the other. Quite often, iconic names are preserved in a division or a product line. Sometimes it is not evident that there is a strategy.

It was always clear what Iron Mountain’s strategy was with its acquisition of ediscovery company Stratify and its subsequent addition of email archive specialist Mimosa Systems. Iron Mountain already dominated the paper archive market, and the two acquisitions fitted neatly into a presumed plan to bring corporations’ entire archiving and document-handling under one roof and one strong brand. More than two years on from the Stratify acquisition, we are seeing that logic working through into the branding. The Stratify and Mimosa web sites still occupy their former domains, but the sites are clearly branded as Iron Mountain sites. My messages from people at Stratify now bear Iron Mountain email addresses; the Stratify tagline “Know what you have” is disappearing, and we wait to see what use is made in the future of the familiar name on the company’s products.

SharePoint 2010 is the next dumping ground for lawyers to understand

Larry Briggi of FTI Technology describes Microsoft’s SharePoint 2010 as “the next dumping ground”. SharePoint is already here and now and having stuff dumped in it daily. FTI’s SharePoint Harvester is one of the new products aimed at meeting the problems which SharePoint raises. Technical comparisons fall outside my remit, but Larry’s blunt description of the problem caught my eye, so I asked him to explain what the problems are in terms which a lawyer would understand.

Parallel  announcements from different vendors induce a kind of writerly paralysis in me. The press releases roll in, many accompanied by invitations to speak to someone authoritative about them. The fact that several companies have addressed the same problem indicates that the subject is an important one, but the vocabulary for describing it is finite, and five articles in succession covering the individual ways in which the problem has been tackled is not an audience-winner. I am not much interested in just passing on press releases, nor am I technically qualified to compare the merits of each (which would, in any event, require exhaustive hands-on testing in a live environment), so rival claims about relative capabilities leave me cold. Any list is bound to omit someone with a claim to a mention, so there is a temptation to avoid the subject altogether for fear of offending someone. Last but not least, May and June are always crazy times when product releases and industry announcements flood out over a period when I am either at a conference, packing to go to a conference, or sitting in an airport lounge in a cold, grey dawn when my body thinks it is tea time.

Really, though, I am interested in market trends rather than products – the problems which are being faced by companies and lawyers and what sort of solutions the providers are coming up with to help them deal with them, with a particular focus on the UK. My role is not so much reportage (that is Charles Christian’s job) or analysis (I leave that to the The 451 Group), but helping lawyers to understand what implications arise when they have to collect their clients’ documents and data for disclosure. Given that most UK lawyers are still struggling with the idea that Word and Excel files are “documents” at all, and since I write for the long-term not for tomorrow’s deadline, I am let off the production of “news” and do not feel too embarrassed if time elapses between an announcement and my coverage of it.  My piece of a few days ago about a $25 million ediscovery sale is a rare example of a story which (thanks to Twitter) I had  before almost everyone else and which warranted some instant journalism.

Applied Discovery + EMC + Kazeon offer combined services for collection, ECA and Review

It used to be quite easy to explain to lawyers what was the role of each player in the discovery process. It was easiest, of course, in the days when the only application was a photocopier. Many lawyers, I think, got stuck at the next stage when litigation support meant scanning paper and setting teams of people to enter information about each document by hand. The only technical expression around then was “coding” which acquired a mystique disproportionate to what was actually involved.

Then came electronic documents. You will still hear the uninformed saying that handling electronic documents is just like dealing with paper. Fortunately, electronic documents bring much of their own coding with them – I say “fortunately” because their volumes increased at a rate which made manual coding of basic identification information an impossibility. Different specialisations grew up – companies became known for their skill at collecting data, for their capacity to store it, or for their ever more sophisticated applications for analysis and review. The Electronic Discovery Reference Model (EDRM) became the standard definition of the stages through which documents passed, giving rise to the idea that the process flow moved from information management on the left to presentation in court on the right, with other stages between. The goal of most providers was to embrace the stages which lay to left or right (or both) of their starting point.

It confuses the punter – the putative buyer – no end. Those who have lived with the market as it has developed can have no idea what it looks like to someone who comes at it from scratch. The apparent simplicity of the EDRM goes for nothing once they find that market players who appear to specialise in one area have plausible aspirations to others, and that grey areas develop where it is far from clear whether the ancillary expertise – the review capabilities, say, of a data collection specialist – are fully developed products or merely gestures.

Australian ediscovery round-up

My conclusion after my recent visit to Sydney was that every jurisdiction which engages in ediscovery thinks that it is behind the others. This is certainly not true of Australia, and  Master Whitaker and I were not merely being polite when we said that we had come to find out what is happening there for our own benefit, as well as bringing news of developments in the UK.

There is enough going on down there at the moment to warrant a quick summary. My own accounts of our visit to Sydney are here and here,  and I wrote before I went of the Attorney General’s Terms of Reference for a Discovery review.

Since then, Geoffrey Lambert of e.law has tipped me off about a further development, the Civil Dispute Resolution Bill 2010 (Bill) which, if enacted, will require a “Genuine Steps” process by which parties must show formally that they have tried to settle a dispute, with costs implications if they do not do so. I am slightly chary of developments like this – the experience in England & Wales of court-driven settlement is that the mechanics of managing the dispute take second place to attempts to impose a rapprochement which is itself expensive and not necessarily what the parties want.  There is a distinction (for which we must thank Professor Dame Hazel Genn QC) between “a just settlement” and “just a settlement”, and there is a difference too between mediation to resolve a dispute and co-operation to conduct it efficiently.  If judges spent less time on the former and more time imposing the latter, we might see the costs of litigation come down whilst allowing the parties to have their day in court. It will be interesting to see if Australia can take the benefits of alternative dispute resolution without losing the drive towards more efficient procedures for managing contention.

Some object-lessons from history, art and a non-discovery conference

You nearly got a grumpy old man story from me yesterday morning. You were spared only because I did not have time to write it before setting off for London. If I had known how the day would evolve, I would certainly have written it – although I suppose if I had known how the day would evolve, I would not have gone to London in the morning and there would not have been anything to be grumpy about.

I was asked at short notice to cover for someone else doing an e-disclosure session at an industry-specific conference. I am pretty conferenced-out by this stage in the year, so I was not exactly suffused with pleasure at the prospect. I am generally fairly picky about the ones I do, sticking either to the very big ones which are bound to be good, or taking an active role in shaping smaller ones in advance. This one was set in stone by the time I heard about it, but I broke all my rules about reconnaissance to help out. I roped in Vince Neicho of Allen & Overy who kindly agreed to do it with me, and we worked together to produce a slide set and a running order. All conferences have a tedious lead-in period where emails fly to and fro; my crossness was with myself for conceding a battle over the time of our session – I wanted it as late as possible in the day, but the organisers simply wouldn’t have it and I had given up fighting over it. The slot they insisted on, just after lunch, screwed up my whole day, not just part of it, and I don’t have half days to spare at the moment, any more than Vince does.  I had also failed to spot that the venue was not in fact in London but somewhere out in the Essex marshes.

Autonomy: a very short press release for a very big eDiscovery deal

There is, alas, no rule which says that press releases must be proportionate in length to the size of the story. Those of us who are sent them usually have to plough through yards of verbiage and work out for ourselves whether the host of superlatives actually means anything of significance.

That a really big story needs very few words is illustrated by one found today on the web site of the London Stock Exchange with the heading Autonomy enters into $25 million agreement for e-Discovery software.

The admirably terse central message reads

Autonomy…  today announced that it has received an order for its e-discovery and compliance solutions with an initial value of approximately $15 million and a total committed value of approximately $25 million over the next few years.

Commenting on the contract win, Andrew Kanter, Autonomy’s Chief Operating Officer said today: “I am pleased to announce this latest significant contract win at the more sophisticated end of e-discovery and compliance solutions, in this case coming outside the historically strong verticals of the financial services and pharmaceutical industries.”

Beyond the fact that the Stock Exchange page is headed “Regulatory Story”, there are no other clues as to the buyer or its purpose. Twitter buzzes with anticipation, but the story broke only 75 minutes ago, so we will have to wait and see. Stock Exchange market news has a narrower purpose than a full-blown press release, so we may get some details as the day goes on.

More when I know more.

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Cats at Bacchanalia

Cats Legal kindly asked me to speak at their client event last night. More compelling than me as an attraction, I suspect, was the fact that the venue was Bacchanalia , the specialists in fine Spanish wines, whose premises are on the floor above Cats Legal at Broken Wharf, close by the Millennium Bridge. To have spoken last week overlooking Sydney Harbour (as recounted here), and then to do so with the Thames at my back shows how lucky I am in the platforms offered to me.

Broken Wharf is above and to the right of the right-hand pier of the Millennium Bridge

Collecting evidence for Ofsted and its parallels with e-Disclosure

Here is a nicely ambiguous Google search. My blog stats include a list of the terms which people used to find the site, and one from earlier in the week was “collecting evidence for ofsted”. The search was presumably made by some poor blighter trying to run a school. Instead of concentrating on educating children, he or she must instead collect evidence about something which Ofsted requires. One of the more amusing aspects of a recent e-disclosure case was the contrast between Ofsted’s officious punctiliousness  in demanding information from schools and its own incompetence when required to produce documents in the Sharon Shoesmith litigation.

Ofsted is the Office for Standards in Education, Children’s Services and Skills. The mismatch between its name and its acronym derives from the empire-building of the last Secretary of State for Education, the unpleasant Ed Balls who, baulked of his ambition to become Chancellor of the Exchequer, renamed himself Secretary of State for Children, Schools and Families. There is a certain type of politician who thinks that he gains lustre by having more words in his department’s name, and one of the many grounds on which Balls was loathed by almost everyone was the way he used the breadth implied by his department’s new name to stick his oar into anything which involved young people, however peripherally. His successor restored the name Department of Education so quickly that one suspected that the signage had been commissioned before the election, emphasising the commitment to what really matters. It is that which provides my link to client objectives in litigation.

The Google searcher would have found my site because I use Ofsted’s conduct of its disclosure in the Shoesmith litigation to illustrate how disclosure failures are more often the product of stupidity, ignorance and indolence than of any misunderstanding of the law. Some paper-shuffler missed the fact that his My Documents folder included a sub-folder clearly marked “Haringey Inquiry” and a mail folder similarly entitled, and had to confess to this just before judgment was delivered. The judge has demanded to know how this happened.

A meaningless comment about technology in court

An outraged e-mail came in from Dominic Regan early on Saturday morning. Headed “The most stupid comment of the year”, Dominic’s message drew attention to the report in the Times about the Saville Inquiry into the Northern Ireland shootings. The report included a quotation about the Inquiry’s use of technology: “without it, the tribunal would have had to be more focused”. I will not take up space with the exclamation marks with which Dominic followed this.

What do you think the author of this comment meant? Did the tribunal lose sight of its remit because technology was used? If the whole thing had been done from paper, would the tribunal have concentrated more closely? Does technology blur the vision – if so, then a visit to the optician is called for, not a woolly implication that technology encourages loss of focus.

I have binned the paper, and the Times web site is no longer accessible, so I don’t know who made the comment or what weight to attach to it. Its supposed author may have been misquoted. Its context is a negative one, so I assume that a negative meaning was intended. I just don’t know what it does mean.

It is curiously reminiscent of the sort of thing you hear from technology-deniers in other civil procedure contexts – you can just imagine a judge resisting the use of technology in litigation on the grounds that lawyers were much more focused in the days when everything was printed and filed in ring binders and read by eye. Actually, you do not have to imagine it.

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Ark Group eDisclosure conference in London

On my way to London yesterday to chair the Ark Group ediscovery 2010 conference, I read about the deletion of e-mails by an aide to the Qatari royal family (see Guardian article here). The allegation is that 19 e-mails referring to Prince Charles or his private secretary were deleted to  make them unavailable  in contract proceedings brought against the family’s development arm. People seem to forget that it is inherent in the nature of an e-mail that at least one other person has a copy of it. This is a bit like being an AIDS awareness campaigner in the late ’80s – however wide the publicity, and however many celebrities died, people carried on behaving as before. The excuse “I was just tidying up my InBox” is as valueless as “I only slept with her once”, and the odds of getting caught out are rather higher – being selective in your choice of partners is a good thing, whereas selective deletion of emails is not, not in this context anyway.

Where do you pitch the message for the audience at a conference like yesterday’s, where the range of knowledge and understanding is both unknown and variable? One of my standard slides, always near the top of the deck, used to be one one with a definition of edisclosure. I have recently removed it, reckoning that the chapters dedicated to the subject in each of Lord Justice Jackson’s reports, when added to the eye-catching cases, made that slide redundant. Apparently not, judging by one of the questions from the floor. How much does one say about the available technology? I used a composite slide covering all of it in one go, but many of those present would have appreciated the full set. Do people know about the existing practice direction, let alone the pending one? It seems that the PD remains as obscure as ever, and it is as if Digicel v Cable & Wireless and Earles v Barclays Bank had never happened.

Recommind Webinar 16 June – Earles v Barclays Bank

I am doing a webinar with Jason Robman of Recommind on Wednesday 16 June at 16.00 BST. It is called The Impact of Earles v Barclays Bank on UK Corporations. Registration is here.

Some of the UK e-Disclosure cases recently have been lightly amusing tales of incompetence and stupidity. Earles v Barclays Bank is, I think, the only one which actually has the word “incompetence” in it, but it is far more important than some of the music hall turns we have seen in the courts in the last few months. If the headline point was that a successful party had its costs severely reduced for disclosure failures, it swept up along the way questions like the extent of the duty of preservation, litigation readiness and legal hold, neither of which has seen much developed law in the UK.

Its messages are for companies and not just for their lawyers, and go back into the way in which they keep documents, not just into the conduct of the litigation.

I am doing a session tomorrow at the Ark Group eDisclosure 2010 conference with the judge who delivered the judgment, HHJ Simon Brown QC and with Vince Neicho of Allen & Overy. It is called Earles v Barclays Bank: a client’s guide to avoiding adverse inferences, wasted time and costs and damage to reputation. I think it safe to say that I will have had enough of Earles for a bit by the end of this week. Those with large document collections and any potential for litigation will not have that luxury.

Do join us at 4.00 on Wednesday afternoon.

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Lunch-time talk in Sydney with Nuix and KPMG

Knowing that Master Whitaker and I were going to be in Sydney for the Chilli IQ eDiscovery conference, Eddie Sheehy of Nuix invited us to speak at a lunch organised by Nuix and KPMG. The venue was a room on the 15th floor of KPMG’s office overlooking the quay at Barangaroo and the mouth of Darling Harbour, and the audience comprised senior people from large financial and other corporations.

I like this kind of event, because it gets to audiences who are capable of long-term decision-making. Once litigation has commenced or a regulatory investigation is under way, the range of options becomes limited – you are where you are in terms of preparation, and there is often no time to choose the lawyers, decide on the technology or take a long view on the strategy. It is like being a general in the field the night before the battle; your options for deployment and tactics are constrained by what has been done or left undone in the past. The level of decision-maker round that lunch table is in a position to see, for example, the aggregated costs of last year’s litigation, which gives some incentive to plan for next year’s – and to do something about it.

Far and wide eDiscovery at the Chilli IQ conference in Sydney

Sometimes an unconscious theme develops during conferences. Appropriately, perhaps, given the “IQ” element in the organiser’s name, the point which recurred in Sydney was the use of human intelligence in parallel with the processing power and clever technology to get as early as possible to the things which matter. That phrase “as early as possible” came up a lot, not least because (as I noted when I commented on it – see Terms of Reference for Australian Discovery review),  the Australian Attorney General’s Terms of Reference for the pending Discovery Review uses those words three times in their few lines.

Beth Patterson of Allens Arthur Robinson observed, for example, that one might be able to count whole directories in or out by having someone with the appropriate skills and a bit of brain just look in them; if they are patently irrelevant, why include them in the future stages? Michelle Mahoney of Mallesons said that dependence on raw processing power alone meant taking the thinking out of discovery; computers are very good at many things, but they cannot think. Eddie Sheehy of Nuix, unsurprisingly as strong an advocate of intelligent computing power as you will find, recommended giving a couple of the team’s best brains a day or two towards the end of the exercise to try and pick holes in the result by going in any direction they thought fit, trying to find documents or categories which had been wrongly included or excluded. For the third conference running, Equivio (who were not involved at any of them) was praised for the way its products used the best of technology and intelligent human input.  And I used my stock phrase “the best technology lies between your ears”.

I quite like opening the batting at these conferences. The audience is awake, no-one can have stolen your thunder by covering your chosen ground, and a keynote speaker has licence to roam more widely than one with a defined topic.  I merged my session with that of Senior Master Whitaker – I gave a short introductory speech, and used the rest of the double session for an interview-style  discussion with Steven Whitaker about UK developments.  My topics in opening included the international community of interest in ediscovery; the relative importance of rules and processes on the one hand, and discretion, proportionality and the clients’ actual objectives on the other; and the changing relationship between clients, their lawyers and the technology suppliers, with the possibility that the lawyers will get marginalised in that relationship.  Steven Whitaker took us through the key points of the Jackson Report, the range of disclosure options in the draft Rule 31.5A, and the proposed Practice Direction and Questionnaire. We took the cases between us, Steven Whitaker covering the ones which turned on the law, and I taking those in which stupidity, ignorance and incompetence were the main factors (there is something about being in Australia which encourages plain speaking).

Chris-crossing the globe for e-discovery

Sorry for the silence. It has been a bit busy here – not just “here” which is Sydney, but in the short gap in England between leaving Las Vegas and setting off for here. It is a brisk sunny morning (Thursday, I think) here. It is the middle of the night in Liverpool, where I spoke last Thursday. It is late afternoon in Las Vegas where I was a few days ago for CEIC. My inner clock has lost track. It is quite a liberation in a way – as long as you make sure you get to the airports before the planes leave, haul yourself onto a podium at about the same time as the audience sits down, and make it to the meetings and dinners, the division of time thereafter can be wholly arbitrary. Working when you are awake and sleeping when you are tired is not on if you land with a schedule of back-to-back meetings, but it works for me.

E-Disclosure in Liverpool with Cats Legal, Epiq Systems and Dominic Regan

I have to take back what I said yesterday about my rail trip to Liverpool. I had expected the usual shambles, those delays with risible explanations and insincere apologies which are the norm on our overcrowded, badly-run rail network. In the event, the trains ran on time and the connections went smoothly. The new government’s warning to Network Rail directors about their obscene bonuses will obviously not keep their noses out of the trough, but may force them to pay some attention to the poor sods who have to travel with them.

A point did arise about my journey, however, which relates directly to something which came up at the e-disclosure seminar which was its purpose. It concerns transparency of pricing and the potential user’s uninformed expectation as to the costs of engaging any litigation software or services provider. My expectation from the railway bookings web site was that my return ticket would cost £247 (a three-hour journey, followed by three hours performing on my feet, followed by a three-hour journey back, warrants a first class seat, away from the unwashed masses dribbling dogburger slime down their chins whilst they boast loudly of their sex lives on their mobile phones). Face-to-face across the counter, however, the ticket seller told me that, by adjusting my departure time a little, I could get the ticket for £134, and now that I go back and look more closely, I see that this information was buried on the web site.

The point is that I only found out the true cost by speaking to somebody, and it was very much lower than I expected. This came up during the seminar when Cats Legal and Epiq Systems made it clear that many of the jobs which they do are for relatively small matters and for fees which are low relative to what can be achieved and what can be saved. The only way lawyers will find that out is by ringing up a supplier (or preferably more than one), outlining the task, and asking for an estimate. Armed with that estimate, they can make proper decisions as to the most proportionate route, decisions which inform internal strategy as well as discussions with opponents and the court. You need this information also when the boot is on the other foot and your opponents argue that proper electronic disclosure would be too expensive. That may be true, but if they have not sought quotations, how can they make that assertion?

A brief lull between conferences

“You seem to pop up everywhere” said Morgan Sheehy of Nuix when I bumped into him at CEIC 2010 in Las Vegas, a few days after I had seen him in London. Indeed so, for that is the job, or so it seems just now. The interval between that trip and the next is just long enough to write it all up and to field a near-continuous flow of requests for slides, confirmations of one kind or another, and all the bureaucracy which lies behind the relatively simple task of getting on a plane and attending a conference. I am in danger of losing count, but I think I have ten conferences between now and the end of November, half of them abroad, plus webinars. Each organiser inevitably thinks that their conference must be top of my list as it is of theirs.

If CEIC 2010 generated more of my column inches than most conferences, I was not the only one to have got value out of it. Craig Ball’s article CEIC a smash was bold enough to list most of the ediscovery people present (I consciously avoid doing this for fear of omitting someone). I met for the first time Josh Gilliland of D4 who, like me, lugs around a large camera to illustrate conference blog postings. Katey Wood of The 451 group wrote two articles here and here mainly focusing (as I did not) on the forensic backbone to CEIC and on those who supply software and services for forensics. The 451 Group is another commentator which seems increasingly to turn up everywhere – I came across Nick Patience at the InfoRiskAwareness launch in London a few days earlier.  Their role is industry analysis where mine is education and commentary; neither can be accomplished by sitting in one’s office.

Some journeys inspire more trepidation than others. Last week was just Las Vegas and back, and next week involves a return trip to Sydney; neither are particularly daunting. Tomorrow, however, I must entrust myself to the incompetent shambles known as Network Rail and whichever greedy, useless train operator holds the franchise between here and Liverpool. Wish me luck.

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Terms of Reference for Australian Discovery review

I have already reported that the Australian Attorney General has commissioned a review of  discovery laws. We now have sight of the formal Terms of Reference which embed the purpose of the review firmly in the title – “to improve access to justice”.

Their brevity may mislead one into thinking that the Terms of Reference are narrow in ambit. As with Lord Justice Jackson’s terms of reference, the opposite is true – this review is as broad in scope as it could be. Note the recurrence, even in this short document of the phrase “as early as possible”:

…requiring parties to identify and disclose critical documents as early as possible

…ensure key documents relevant to the real issues in dispute are identified as early as possible

…obligations on practitioners and parties to identify relevant material as early as possible

You cannot miss the point there, can you?

Early case assessment still alive and well

One of the odder suggestions which I heard at CEIC 2010 in Las Vegas was that “early case assessment” was yesterday’s idea and that it was time to move on to the next one. On reflection, I decided that the speaker was talking marketing rather than common sense. He did not mean that we should stop making early assessments of cases, nor that we should consign to history the many excellent applications which have been given that label. He was just looking for a new catchy phrase.

Part of the problem, I think, is that its appropriation as a marketing label has buried the fact that early case assessment is a process not a tool. Those big shiny capital letters do not help, and I prefer to talk of “early assessment of a case” – less snappy, perhaps, but a better description of what we are trying to do here. The software applications (and there are, as I say, some very good ones) are an adjunct, and a necessary one, to an approach to the case which depends first on the sophisticated technology which lies between your ears.

The subject comes up because, within days of my being told that ECA was dead, George Socha and Tom Gelbmann have written an article for Law Technology News called Don’t Box ECA which sets out the components of a prudent assessment of a case to be made before e-disclosure / ediscovery begins. It is, if you like, an industry-specific variant on the old expression “time spent in reconnaissance is seldom wasted”.

Time spent summarising the article, on the other hand, would be time wasted, and I simply point you to it. My thanks to Rob Robinson of Applied Discovery who, as usual, had tweeted a pointer to it before the metaphorical ink was dry.

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Comment on Singapore Deutsche AG judgment

Vince Neicho of Allen & Overy saw my post about the Singapore judgment of Senior Assistant Registrar Yeong Zee Kin in Deutsche Bank AG v Chang Tse Wen and others (see Singapore e-Discovery judgment shows international commonality and active management) and has input which is worth passing on. Vince says:

How refreshing that, shortly following the Senior Master’s judgment on Goodale, another judge, Yeong Zee Kin SAR in the High Court of Singapore, has grasped control in an e-disclosure dispute to instil some common sense into the process.

As per usual, Chris has reported the judgment admirably, pulling out the pertinent information for us.  I write this commentary for two reasons:- the first is to rejoice that a judge has corroborated two points that I have been banging on about for years and, second, to seek, with respect, to suggest from a practical angle, that there was an alternative course open to the Yeong Zee Kin, that would have rendered the disclosure more useful in the long run and have resulted in significant cost savings.

Liverpool EDisclosure event on 3 June

The Liverpool Law Society is host to a three-hour course on electronic disclosure on Thursday, 3 June starting at 13.30 pm. The speakers include Professor Dominic Regan and me, together with litigation software supplier Epiq Systems and litigation services supplier Cats Legal.

The venue is the Second Floor, the Cotton Exchange, Edmund Street, Liverpool L3 9LQ.

The format and content are similar to that of the event at Ely Place Chambers last month – see E-Disclosure law, practice and technology in one educational package. Dominic Regan and I will talk about the e-disclosure implications of the Jackson report, the proposed new e-disclosure practice direction and questionnaire, including Master Whitaker’s judgment in Goodale v Ministry of Justice, and about the recent cases which bring this subject to the forefront for lawyers and their clients. The prediction which I made for the Society of Computers & Law at the turn of the year was that e-disclosure failures would become public and personal in 2010, with clients, law firms and individuals named in judgments in circumstances which they would rather avoid. That prediction is being fulfilled, and the penalties generally involve costs, including adverse costs orders. The two providers will explain what technology can bring to the exercise, and what types of software and services are available. The effect of this joint approach is that the interplay between rules, practice and technology will be explained.

Ediscovery cooperation: Give peace a chance

Having heard two US Magistrate Judges in two weeks emphasise that ediscovery co-operation does not require “sitting round a campfire singing kumbaya”, I was interested to see that CaseCentral has picked up the same theme in their latest Case in Point cartoon.

Many lawyers will say that such cooperation is “sleeping with the enemy”, that they feel that it conflicts with their duty to do the best for their clients, and that they cannot explain it to them. Sometimes, they may be right about this to some extent, however unmeritorious that may be, although, in the UK at least, such an approach almost always conflicts with their duty to the court and their obligations under the rules, not least in respect of the overriding objective.

There are only two possible remedies where there has been  non-co-operation: one is pre-emptive active management by the court, imposing co-operation by order; the other is punishment in costs. In the UK, this will usually take the form of recompense to opponents for money thrown away. A lot of this wasted money is down to ignorance rather than intent – ignorance of the rules or ignorance of alternative ways of addressing the volumes. The penalties are likely to be much the same, whatever the cause.

Ignorance inevitably involves no assessment of risk. Where non-cooperation is deliberate, however, the deliberations ought to include a calculation which balances  the perceived benefits (often the grinding down of a weaker opponent) against the risk of being caught and punished in costs. The cases suggest that the balance is shifting, as judges become more aware of their powers, of their duty to hold the ring between parties of differing resources, and of the alternatives which the oppressor might have adopted.

The Sedona  Cooperation Proclamation referenced in the cartoon can be found here. Give it a read before you next decide how best to serve your client’s interests in giving or receiving discovery.

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Cause and effect or why e-Disclosure is like cholera

“In Prussia the poor refused even to believe in the existence of cholera; noting that the eruption of the disease coincided with the arrival of doctors in their slums they drew the inexorably logical conclusion that the doctors had poisoned them.”

I am reading A N Wilson’s The Victorians from which this gem comes. How we laugh now that there should have been people so primitive that they should attribute their problem to those who come to cure it. It is a bit like people who blame the costs of electronic disclosure on those – judges and suppliers – who offer procedural or technical solutions to the problems.

Cholera was a new problem, first seen in India as a pandemic in 1817. Its progress round the globe can be charted from India to Eastern Asia to Persia and Russia until it reached Britain in 1837. The British epidemic of 1848-9 killed 53,000 people. The authorities were not keen to acknowledge that there was a problem at all and it  was left to private enterprise to show that the disease was not caused by smell itself but by the same things which caused the smells – a further muddling of cause and effect.

Clive Freedman e-Disclosure webinar

Barrister Clive Freedman of 3 Verulam Buildings gave a webinar on e-disclosure last week. Clive is a member, as I am, of Senior Master Whitaker’s working party which produced the draft e-disclosure practice direction and ESI questionnaire which were commended in his Final Report by Lord Justice Jackson. Those of us in the working party gratefully acknowledge that the brunt of the actual drafting fell on Clive. He has form in this area, having been heavily involved in the work of LiST, the Litigation Support Technology Group, in its draft PD and e-disclosure protocols.

I was in Las Vegas when the webinar was delivered – that itself is not a bar to attending (or delivering) a webinar, one of the joys of the format, though I could not in fact do so on this occasion. Mike Taylor of I-Lit did listen to it, however, and sent me this report: